Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
No. 16-15342 THE UNITED STATES COURT APPEALS
FOR THE NINTH CIRCUIT
_________
EDWARD TUFFLY, AKA Bud Tuffly,
Plaintiff-Appellant,
UNITED STATES DEPARTMENT HOMELAND SECURITY,
Defendant-Appellee.
__________ APPEAL FROM THE
U.S. DISTRICT COURT FOR ARIZONA
__________
REPLY BRIEF APPELLANT
EDWARD BUD TUFFLY
__________
Michael Bekesha
James Peterson
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ...................................................................................
ARGUMENT .............................................................................................................
CONCLUSION ..........................................................................................................
CERTIFICATE COMPLIANCE .........................................................................
CERTIFICATE SERVICE ..................................................................................
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
TABLE AUTHORITIES
Case
New York Times Company
U.S. Department Homeland Security,
959 Supp. 449 (S.D.N.Y. 2013) .........................................................
Union Leader Corp. U.S. Dep Homeland Sec.,
749 F.3d (1st Cir. 2014)..............................................................................
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
ARGUMENT
The United States Department Homeland Security improperly
withholding the names 149 criminal aliens under Exemptions and 7(C) the
Freedom Information Act. effort satisfy its burden, DHS almost
exclusively argues that the names the 149 criminal aliens should withheld
because today often hostile atmosphere surrounding unauthorized
immigration. Brief for Appellee 11-15. Because this alleged hostile
atmosphere, DHS suggests without any evidence whatsoever that the names
are released, hypothetical individuals will use the information contact and harass
the 149 criminal aliens. That argument fails for three reasons.
First, there always the possibility that, the individual names are
disclosed, Plaintiffs someone other than Plaintiffs could contact the individuals
personally. However, that always possibility when information disclosed
the inquiry whether the stated purpose the FOIA request justifies the possible
intrusion privacy. New York Times Company U.S. Department Homeland
Security, 959 Supp. 449, 456 (S.D.N.Y. 2013). Tuffly testified, his sole
purpose for seeking this information research, make available for others
research, the backgrounds the criminal aliens determine all their past
crimes, any crimes that they have committed since being released, and whether
they have now been removed. Tuffly Decl. (ER 12). Tuffly does not intend
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
contact, harass, embarrass the aliens. Id. Nor does intend for others and when the information made public. Id. Therefore, like the First Circuit
concluded Union Leader U.S. Department Homeland Security, the criminal
aliens privacy rights are diminished the fact that Tuffly does not seek
contact the aliens. 749 F.3d 45, (1st Cir. 2014).
Second, because Tuffly does not seek the addresses the criminal aliens,
the release the names would not facilitate personal intrusions. New York Times
Company, 959 Supp. 456. Tuffly anyone else for that matter would
not know where look find these aliens. addition, DHS claims,
number the released persons have already been removed voluntarily departed
the United States following their release. Brief Appellee 18. Therefore,
even hypothetical individual for some reason wished contact one more
the criminal aliens, the criminal alien may not even reside the United States
anymore. DHS contention that the disclosure the names will enable unknown
and unnamed individuals find and contact the aliens simply untenable.
Third, Tuffly has demonstrated that the names the criminal aliens are
necessary provide insight the activities government. The release the
names will allow Tuffly and others assess both whether DHS made reasonable
assessment the risks posed the public releasing criminal aliens under less
strict supervision, and whether DHS continued supervision has adequately
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
safeguarded the public from dangerous individuals who would otherwise have
been subject detention. result the USA Today FOIA request,
already public knowledge that several the criminal aliens released ICE due
fiscal uncertainty had been charged with number violent crimes including
assault, battery, domestic violence, and weapons charges. See Exh. Tuffly
Decl. (ER 16-17). Yet, without the names the criminal aliens issue this
case, impossible determine subsequent events shed further light the
DHS actions.
Specifically, imperative know whether the released criminal aliens
appeared any subsequent removal hearings, committed additional crimes while
under government supervision, have been removed from the country. fact,
DHS concedes that knowing whether the aliens have been removed voluntarily
departed significant public interest. Brief Appellee Notably, without
citing anywhere the record any evidence all, DHS states, number
the released persons have already been removed voluntarily departed the United
States following their release. However, because DHS has not provided any
evidence all about who longer resides the United States where Tuffly
may find the basis for its assertion, Tuffly cannot confirm DHS representations.
This case solely about learning what occurred after the criminal aliens were
released.
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
CONCLUSION
For the foregoing reasons and the reasons identified Tuffly opening
brief, Tuffly respectfully requests that the Court reverse the District Court order
granting the motion for summary judgment and remand this matter for further
proceedings.
Dated: October 12, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
James Peterson
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
CERTIFICATE COMPLIANCE
This brief complies with the type-volume limitation FED. APP. 32(a)(7)(B) because contains 760 words, excluding the parts the brief
exempted FED. APP. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements FED. APP.
32(a)(5) and the type style requirements FED. APP. 32(a)(6) because this
brief has been prepared proportionally spaced typeface using Microsoft Word
2010, namely, point Times New Roman.
/s/ Michael Bekesha
Case: 16-15342, 10/12/2016, ID: 10156274, DktEntry: 22, Page
CERTIFICATE SERVICE hereby certify that electronically filed the foregoing REPLY BRIEF
APPELLANT EDWARD BUD TUFFLY with the Clerk the Court for the
United States Court Appeals for the Ninth Circuit using the appellate
CM/ECF system October 12, 2016. certify that all participants the case are registered CM/ECF users and
that service will accomplished the appellate CM/ECF system.
/s/ Michael Bekesha